LINDA S. WILBOURN and JOE S. WILBOURN v. TIMOTHY E. SHIBEN, M.D., and BLUEGRASS GASTROENTEROLOGY LINDA S. WILBOURN and JOE S. WILBOURN v. DAVID MEYER, M.D., d/b/a PADUCAH
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RENDERED: JUNE 6, 2003; 2:00 P.M.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2002-CA-000312-MR
LINDA S. WILBOURN and
JOE S. WILBOURN
v.
APPELLANTS
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
CIVIL ACTION NO. 99-CI-00637
TIMOTHY E. SHIBEN, M.D., and
BLUEGRASS GASTROENTEROLOGY
AND
NO. 2002-CA-000942-MR
LINDA S. WILBOURN and
JOE S. WILBOURN
v.
APPELLEES
APPELLANTS
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
CIVIL ACTION NO. 99-CI-00637
DAVID MEYER, M.D., d/b/a PADUCAH
PSYCHIATRIC GROUP
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, HUDDLESTON and KNOPF, Judges.
HUDDLESTON, Judge:
Linda S. Wilbourn and Joe S. Wilbourn appeal
from a McCracken Circuit Court order dismissing their complaint
alleging medical negligence against Timothy E. Shiben, M.D., and
Bluegrass Gastroenterology, P.S.C. and granting summary judgment
in favor of Shiben and Bluegrass.
The Wilbourns also appeal
from the court’s subsequent order dismissing their complaint as
to David A. Meyer, M.D., d/b/a Paducah Psychiatric Group, and
granting summary judgment in favor of Meyer.1
issue
is
dispositive
in
both
cases,
the
Because the same
appeals
will
be
consolidated for the purpose of review.
In November 1997, Linda began suffering from nausea
and
vomiting
on
a
regular
basis
for
no
apparent
reason.
Although she underwent surgery to have her gallbladder removed,
the problems persisted.
After consulting several physicians,
1
In their complaint, the Wilbourns also named R. Eric
Shields, M.D., and Lourdes Hospital, d/b/a Lourdes Hospital,
Inc., as parties.
However, in an order entered on April 20,
2001, the court granted summary judgment in favor of Lourdes
Hospital and the Wilbourns have not appealed from that judgment.
As the Wilbourns have apparently settled their claim against
Shields, Shiben and Meyer are the only remaining parties.
2
Linda
was
referred
gastronenterologist,
treating
Linda
on
for
May
to
Shiben,
specialized
7,
1998,
and
a
board-certified
treatment.
Shiben
immediately
began
scheduled
a
number of tests for the purpose of determining the cause(s) of
her
symptoms.
gastritis,
With
the
however,
all
exception
of
the
of
a
positive
results
test
were
for
normal.
Consequently, Linda was hospitalized from June 8th through June
11th for further diagnostic testing, during which time Shiben
requested a psychiatric consultation from Meyers in order “to
confirm his suspicion that to some extent [Linda’s] problems had
psychological origins.”2
At that time, Shiben considered a brain
tumor to be a potential but “extremely unlikely” cause for her
symptoms.
Nonetheless, he ordered a CT scan of the head on June
11, 1998, which the radiologist, Shields, read as normal.
On June 21, 1998, Linda presented to the emergency
room complaining of an inability to hold down any liquids and
was admitted for IV hydration.
In the “history and physical”
prepared by Shiben upon her admission, Shiben indicated that
2
As observed by Shiben, the Wilbourns apparently failed to
certify Meyer’s consultation report as part of the record below.
Although Shiben attempted to cure this deficiency by including
the report as an exhibit to his brief, his contemporaneous
motion to modify the record on appeal was denied. Thus, we are
precluded from considering this document thereby dispensing with
the need to address the Wilbourns’ contention that Shiben either
misread Meyer’s note or Meyer was negligent in writing the note
since he “never meant to say that depression had any role in
[Linda’s] problems.” See Ky. R. Evid. (KRE) 901(a) and (b).
3
Linda was suffering from “intractable nausea and vomiting” but
the
“extensive
workup”
as
described
had
been
“unremarkable.”
Shiben further acknowledged that he had been unable to find a
cause “other than major depression” to account for her illness
and, therefore, strongly recommended that she continue taking
Zoloft as prescribed and follow up with Mental Health upon being
discharged.
Although
he
also
offered
intervention
with
a
feeding tube and/or a referral to the University of Kentucky
Medical Center, Linda declined both.
While in the hospital, Linda underwent an abdominal
obstructive series and an enteroclysis was attempted but not
completed as documented by the discharge summary.
“[t]here
was
obstruction.”3
no
evidence
According
on
to
the
plain
Shiben,
films
Meyer
had
However, the
of
abdominal
confirmed
his
diagnosis of major depression during her last admission and,
although
Linda
had
followed
his
recommendation
as
to
Mental
Health, she left upon learning that she would have to be there
all day.
she
could
Shiben informed Linda that “there was a chance that
possibly
die
from
this
3
illness”
if
her
symptoms
Shiben also observed that Linda had a history of “a small
bowel follow through with barium reaching the colon and then a
colonoscopy with terminal ileum intubation which was normal.”
Absent a change in her abdominal x-rays, Shiben saw no need to
repeat the enteroclysis.
Further, he commented that she had a
“known lesion in her left ischium of her pelvis” that was
believed to benign. Linda had also undergone a bone scan which
was also unremarkable.
4
persisted”
although
he
did
believe
that
her
condition
was
treatable with medications and mental health treatment on an
outpatient
basis.
Linda
again
declined
Shiben’s
offer
to
transfer her to UK for a second opinion and insert a feeding
tube to assist with nutrition.
In early July 1998, Linda developed further symptoms
that she concedes differed from those she had been experiencing
while
under
Vanderbilt
the
care
University
of
Shiben.
Medical
She
Center
sought
where
treatment
her
at
treating
neurologist, Dr. Moots, ordered an MRI that revealed a brain
tumor
called
a
medullablastoma
that
was
surgically
removed.4
Both Dr. Toms, Linda’s surgeon, and Moots subsequently reviewed
the CT scan ordered by Shiben and read by Shields and have since
testified
that
the
brain
tumor
clearly visible on the scan.
Shields
failed
to
detect
is
Shields conceded as much in his
own deposition.
In a complaint filed on July 6, 1999, the Wilbourns
alleged
that
a
physician-patient
relationship
was
established
between Linda and Shiben “on and perhaps prior to May 7, 1998,”
which continued until July 6, 1998.
According to the Wilbourns,
he “failed to properly inform, diagnose and treat [Linda] by
acts of omission and commission, resulting in the failure to
4
According to Shiben, this is “a very serious and usually
devastating form of brain cancer.”
5
timely diagnose and treat her malignant tumor” and, further,
that
“the
diagnoses,
treatment
and
information
rendered
by
[Shiben] were negligently rendered and deviated from acceptable
medical and gastroenterologic standards.”
Similarly,
patient
the
relationship
Wilbourns
had
been
alleged
that
established
a
between
physicianLinda
and
Meyer on June 10, 1998, that continued until July 6, 1998, and
that he was negligent in failing to “properly inform, diagnose
and treat [Linda] by acts of omission and commission.”
view,
the
[Meyer]”
“diagnoses,
was
also
treatment
and
“negligently
information
rendered
and
In their
rendered
deviated
by
from
acceptable medical and psychiatric standards.”
Meyer and Shiben filed their answers on July 22nd and
July
23rd,
respectively.
Later
that
month,
both
Meyer
and
Shiben filed their interrogatories and requests for production
of documents with the court and served the Wilbourns with same.
However,
the
Wilbourns
failed
to
respond
to
either
set
of
interrogatories or request for production within the requisite
time frame.5
discovery
On October 26, 1999, Meyer filed a motion to compel
which
he
withdrew
later
that
day
citing
an
agreed
order between the parties extending the time for discovery that
5
As evidenced by the record, Meyer also requested a response
via correspondence dated August 27, 1999, and September 23,
1999.
6
had been entered on October 12, 1999.
By letter of October 27,
1999, Shiben requested answers to his interrogatories but his
correspondence
went
unanswered.
Thus,
he
filed
a
motion
to
compel discovery on January 11, 2000, which was granted by the
court in an order entered on January 21, 2000.
The Wilbourns do
no not dispute that their answer did not identify an expert who
would testify regarding either the appropriate standard of care
or the doctors’ alleged deviation from the standards applicable
to their respective specialties.
In
an
order
entered
on
April
24,
2001,
the
court
scheduled a pretrial conference for October 4, 2002, and ordered
the parties to exchange discovery on or before September 18,
2002, including witness lists identifying all witnesses expected
to be called at trial and a summary of their expected testimony.
Pursuant to that order, trial was scheduled for November 18,
2002.
In response, the Wilbourns took the depositions of Toms
and Moots on July 16, 2001, and deposed Shiben and Shields on
August 22, 2001.
None of their testimony supported the theory
that Shiben and/or Meyer deviated from the appropriate standard
of care.
On October 25, 2001, Shiben filed a motion for summary
judgment with a memorandum and affidavit in support thereof that
was noticed for a hearing on December 19, 2001.
Shiben argued
that a claim for medical negligence requires “proof that the
7
defendant failed to exercise a degree of care and skill which is
expected of a reasonably competent practitioner in the class to
which he belongs, acting in the same or similar circumstances”
and
expert
physician
testimony
“failed
to
is
required
conform
to
to
demonstrate
the
standard
that
of
the
care.”
According to Shiben, the Wilbourns’ failed to produce expert
testimony
and
that
omission
was
fatal
to
their
claim.
Therefore, he was entitled to summary judgment under Kentucky
Rule of Civil Procedure (CR) 56, pursuant to which the opposing
party
must
provide
counter
affidavits
setting
forth
specific
facts demonstrating a genuine issue of material fact for trial
in order to defeat a motion for summary judgment.6
Further, his
care was “competent, reasonable and within the standard of care”
and he “ordered the appropriate tests, at the appropriate time,
and deferred to the specialist to interpret that test.”
In
a
response
filed
on
December
18,
2001,
the
Wilbourns argued that they could not be punished for failing to
produce an expert until their time for producing such an expert
had expired.
Because they were “under no obligation to list
their experts until September 18, 2002,” summary judgment would
6
According to Shiben:
“Both Drs. Moots and Toms have
indicated that the test was the appropriate test to determine if
a brain tumor existed, and the test actually showed the
existence of a brain tumor.”
The Wilbourns do not challenge
this contention.
8
be premature and “akin to moving for a directed verdict before
[the Wilbourns] ha[ve] finished calling all [their] witnesses.”
In their view, their affidavits7 standing alone created a jury
issue and, further, Shiben could not possibly prove that they
“could
not
prevail
under
any
circumstances”
as
required
summary judgment before Meyer had even been deposed.
order
entered
on
January
4,
2002,
the
court
granted
for
In an
summary
judgment in favor of Shiben.
On November 14, 2001, Meyer filed a motion for summary
judgment with a memorandum and affidavit in support thereof,
echoing the arguments of Shiben.
however,
his
motion
was
removed
By agreement of the parties,
from
the
docket
deposition could be taken on February 21, 2002.8
until
his
Following his
7
In their affidavits, taken on December 14, 2001, both Linda
and Joe emphasized that they would “would certainly have sought
further treatment and investigation of [Linda’s] problems and
condition” had they “not been convinced by [Shiben]” that there
was no physical basis for her difficulties. According to their
recollection, Shiben “never explained to [them] why he had
requested a CT scan of the head without contrast” or discussed
the possibility that her problems could be attributable to a
brain tumor.
Therefore, they “saw no need for any further
treatment since these expert doctors, whom we trusted and
depended upon, had made it very clear that there was no physical
cause for [Linda’s] symptoms.”
Aside from the foregoing
reference and an acknowledgement that he had been “called in”
during Linda’s hospital stay of June 8 - June 11, 1998, at which
time he and Shiben advised her to go to the mental health
center, Meyer is not mentioned in either affidavit.
8
There is no allegation that Meyer’s testimony substantiates
the Wilbourns’ claims regarding Shiben.
9
deposition, Meyer filed a “re-notice” of his motion on February
26, 2002, and the Wilbourns responded on April 1, 2002, arguing
that a factual issue existed because “either [Meyer] wrote the
note in a confusing manner or [Shiben] misread [Meyer’s] consult
note” and, further, Meyer had admitted violating the standards
of the American Psychiatric Association.”9
Noticeably absent
9
In short, this argument is based on a faulty premise, i.e.,
that the purported APA guidelines attached to the Wilbourns’
motion
for
summary
judgment
and
brief
on
appeal
were
authenticated below and can therefore be properly considered as
evidence of record for purposes of review.
In making this
assumption, the Wilbourns have neglected to comply with KRE 901
which, in relevant part, provides:
“(a)
General provision.
The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is
what its proponent claims.”
Subsection (b) of this rule
contains an illustrative list of acceptable methods by which to
satisfy this threshold requirement.
The Wilbourns made no
attempt to authenticate the guidelines during the proceedings
below, instead attaching the documents upon which it relies to
its motion and labeling them as an exhibit rather than
authenticating them via affidavit, interrogatory or comparable
means.
Although the examples in KRE 901(b) are “[b]y way of
illustration only, and not by way of limitation,” the necessary
implication is that some method must be utilized to verify the
authenticity of such documents as a condition precedent to their
admissibility.
Even assuming arguendo that the documents in question could
accurately be described as self-authenticating, certification as
defined in KRE 902 is required and is equally lacking.
Presumably, the Wilbourns are implicitly arguing that this court
should take judicial notice of these guidelines pursuant to KRE
201.
This we cannot do.
Because the Wilbourns failed to take
the necessary steps below to authenticate the purported
evidence, it stands to reason that said evidence is not of
record on appeal, and, therefore, we are precluded from
considering this extraneous information as our review is limited
to the “pleadings, . . . .” See CR 56.03.
10
from the Wilbourns’ response, however, was any reference to an
expert
medical
argument.
opinion
or
an
affidavit
in
support
of
their
In an order entered on April 10, 2002, the court
granted Meyer’s motion for summary judgment.
On January 15, 2002, the Wilbourns filed a motion to
alter, amend or vacate the summary judgment entered in favor of
Shiben
that
was
noticed
for
a
hearing
on
January
Shiben filed his response on January 23, 2002.
24,
2002.
In support of
their motion, the Wilbourns argued that their “affidavits and
response
to
the
motion
for
summary
judgment
demonstrate
the
existence of material contested issues of fact relating to both
inferred negligence and the applicable standard of care.”
In
their view, the allotted time to produce experts did not expire
until September 18, 2002, pursuant to the court’s scheduling
order.
Thus, summary judgment was premature since they expected
“to obtain relevant testimony within the time allotted” by the
court’s order “to support a jury issue” regarding a violation of
the applicable standard of care and Shiben had not demonstrated
the “impossibility of producing sufficient evidence at trial” to
warrant a judgment in his favor.
In an order entered on January
25, 2002, the court denied the Wilbourns’ motion.
now appeal from both summary judgments.
11
The Wilbourns
On appeal, the Wilbourns cite no authority in support
of their arguments which mirror those made below,10 as do the
arguments
context
of
is
judgment
both
well
“if
doctors.
Our
established.
the
standard
CR
pleadings,
of
56.03
review
authorizes
depositions,
in
this
summary
answers
to
interrogatories, stipulations, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to
a judgment as a matter of law.”
Summary judgment is only proper
“where the movant shows that the adverse party could not prevail
under
any
circumstances.”11
However,
“a
party
opposing
a
properly supported summary judgment motion cannot defeat that
motion
without
presenting
at
least
some
affirmative
evidence
demonstrating that there is a genuine issue of material fact
requiring trial.”12
light
most
The circuit court must view the record “in a
favorable
to
the
party
opposing
the
motion
for
10
In the alternative, the Wilbourns contend that “no expert
is absolutely needed on this issue” because, if you believe
their version of events, Shiben conceded he was unable to
isolate the cause of Linda’s illness but also told them that
depression was the sole cause of her symptoms. Point being, “if
he did not know, but then told them that he did know, then he
lied to them” and “[s]urely, lying to a patient is a deviation
from the standard of care.”
Under their reasoning, this
credibility issue creates a jury question.
11
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807
S.W.2d 476, 480 (1991), reaffirming Paintsville Hospital Co. v.
Rose, Ky., 683 S.W.2d 255 (1985).
12
Hubble v. Johnson, Ky., 841 S.W.2d 169, 171 (1992).
12
summary
judgment
and
all
doubts
are
to
be
resolved
in
his
to
see
were
no
favor.”13
On
from
the
“whether
appeal
trial
a
court
summary
judgment,
correctly
found
we
that
look
there
genuine issues as to any material fact and that the moving party
was entitled to judgment as a matter of law.”14
Since there are
no factual findings at issue, deference to the trial court is
not required.15
In Blair v. Eblen,16 relied upon by both Shiben and
Meyer,
Kentucky’s
highest
court
conclusively
resolved
any
question regarding the proper standard to be applied in medical
negligence
cases.
Rejecting
the
“community
standard”
rule
previously employed in this context, the Court found that the
jury in such cases should be instructed that the defendant “was
under a duty to use that degree of care and skill which is
expected
class
to
of
a
reasonably
which
circumstances.”17
he
competent
belongs,
In
so
acting
doing,
practitioner
in
the
the
Court
same
in
or
the
similar
emphasized
13
Steelvest, supra, n. 11, at 480.
14
Scifres v. Kraft, Ky. App., 916 S.W.2d 779, 781 (1996).
15
Id.
16
Ky., 461 S.W.2d 370 (1970).
17
Id. at 373.
13
same
that
determination of the applicable standard should be left to the
medical profession itself rather than the courts.18
It is beyond dispute that medical expert testimony is
required in a medical negligence action to establish both the
applicable
standard
of
care
and
the
defendant’s
failure
to
conform to that standard; negligence cannot simply be inferred
from an “’undesirable result.’”19
Here, the Wilbourns admittedly
neglected to produce any expert medical testimony or evidence of
record establishing the applicable standard of care in relation
to gastroenterology or psychiatry, the respective professions of
Shiben
and
Meyer.
Equally
lacking
is
any
expert
testimony
establishing that either doctor deviated from the standard of
care
mandated
by
his
profession
—
not
surprising
given
that
evidence of the former is necessarily required to demonstrate
the latter.
In its entirety, the medical evidence offered by the
Wilbourns
Shiben
18
consisted
and
Meyer,
of
all
the
of
testimony
which
given
by
undermines
Toms,
rather
Moots,
than
Id.
19
Perkins v. Hausladen, Ky., 828 S.W.2d 652, 654 (1992).
Although there are two exceptions to this general rule, neither
exception is implicated on the current facts as the Wilbourns
implicitly concede by arguing that they would have produced the
required expert testimony within the designated time frame
rather than contending that such testimony is not necessary
here.
14
strengthens their position and is contradicted only by their own
lay testimony.
opinions
do
not
Contrary to the Wilbourns’ assertion, their lay
constitute
the
type
of
evidence
create a question of fact for the jury.
required
to
In the absence of
expert medical testimony to establish the applicable standard of
care and a deviation from that standard with respect to either
Shiben or Meyer, no genuine issue as to a material fact existed
and
summary
judgment
was
properly
granted
in
favor
of
both
doctors.
Despite the fact that over two years elapsed from the
time the Wilbourns filed their complaint until summary judgment
was granted in favor of Shiben and Meyer, the Wilbourns argue
that summary judgment was premature.
This argument hinges on a
faulty premise, namely that the court could not grant summary
judgment unless and until the discovery deadline had passed.
In
Hartford Insurance Group v. Citizens Fidelity Bank & Trust,20 we
were confronted with this issue, albeit in a different context:
It is not necessary to show that the respondent has
actually completed discovery, but only that respondent
has had an opportunity to do so.
Here, Hartford had a
period of some six months between the filing of the
complaint and the date of summary judgment in which to
20
Ky. App., 579 S.W.2d 628 (1979).
15
engage in discovery, or to inform the court, pursuant
to CR 56.06, why judgment should not be entered or why
a ruling on the motion for summary judgment should be
continued.21
Here, the Wilbourns had ample opportunity to complete
discovery or, at a minimum, identify an expert whose testimony
would support their claim as required by the governing case law.
In arguing that the court violated its own pretrial order by
granting
summary
judgment
prior
to
the
expiration
of
the
discovery deadline, the Wilbourns misconceive the function of
such an order, which does not necessarily have any bearing on
the proper time frame in which to file a motion for summary
judgment.
Although no arbitrary time limit applies in these
instances
and
the
court
does
retain
discretion
to
find
that
sufficient time has not elapsed, no credible argument can be
made
that
two
years
was
inadequate
on
the
facts
presented,
particularly considering the specific requests made by Shiben
and Meyer.
With respect to the burdens of the parties on a motion
for summary judgment, the adverse party is not required to file
any sort of answer, defensive pleading or other response to a
21
Id. at 630.
16
motion for summary judgment.22
However, when the moving party
has presented evidence showing that despite the allegations of
the pleadings there is no genuine issue of any material fact, as
is the case here, “it becomes incumbent upon the adverse party
to counter that evidentiary showing by some form of evidentiary
material reflecting that there is a genuine issue pertaining to
a material fact.”23
Meyer
was
of
Because the evidence presented by Shiben and
such
a
nature
that
no
genuine
issue
of
fact
remained to be resolved, the omission of counter evidence, i.e.,
expert medical testimony, by the Wilbourns was fatal to their
claims.
Because
judgment
in
favor
the
of
circuit
court
Shiben
and
properly
Meyer,
granted
both
summary
judgments
are
affirmed.
KNOPF, Judge, CONCURS.
DYCHE, Judge, CONCURS IN RESULT.
22
23
Id.
Id.,
(1968).
quoting
Neal
v.
Walker,
17
Ky.,
426
S.W.2d
476,
479
BRIEF FOR APPELLANTS:
Kevin George
Louisville, Kentucky
BRIEF FOR APPELLEES TIMOTHY E.
SHIBEN, M.D. and BLUEGRASS
GASTROENTEROLOGY:
E. Frederick Straub, Jr.
Guthrie H. Allen
WHITLOW, ROBERTS, HOUSTON &
STRAUB, P.L.L.C.
Paducah, Kentucky
BRIEF FOR APPELLEE DAVID MEYER,
M.D., D/B/A PADUCAH PSYCHIATRIC
GROUP:
W. Mitchell Deep
KING, DEEP AND BRANAMAN
Henderson, Kentucky
18
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